Environmental Decisions of the U.S. Court of Appeals, all Circuits. Summaries provided by Waste Information & Management
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Wednesday, March 4, 2009

Note: Previously, we have not posted Supreme Court decision here. Effective immediately, we will begin posting Supreme Court decision that we cover. Mar 3: In the U.S. Supreme Court, Case No. 07-463 [See WIMS 10/8/08]. On appeal from the U.S. Court of Appeals, Ninth Circuit [See WIMS 6/11/07]. The questions presented are indicated by the Court as: 1. Whether the Forest Service's promulgation of 36 C.F.R. 215.4(a) and 215.12(f), as distinct from the particular site-specific project to which those regulations were applied in this case, was a proper subject of judicial review. 2. Whether respondents established standing to bring this suit. 3. Whether respondents' challenge to 36 C.F.R. 215.4(a) and 215.12(f) remained ripe and was otherwise judicially cognizable after the timber sale to which the regulations had been applied was withdrawn, and respondents' challenges to that sale had been voluntarily dismissed with prejudice, pursuant to a settlement between the parties. 4. Whether the court of appeals erred in affirming the nationwide injunction issued by the district court. In the 5-4 split decision, Justice Scalia delivered the opinion of the Court, in which Justices Roberts, Kennedy, Thomas, and Alito joined. Justice Kennedy also filed a separate concurring opinion. Justices Breyer filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, joined.

The majority said, "Respondents are a group of organizations dedicated to protecting the environment. (We will refer to them collectively as Earth Island.) They seek to prevent the United States Forest Service from enforcing regulations that exempt small fire-rehabilitation and timber-salvage projects from the notice, comment, and appeal process used by the Forest Service for more significant land management decisions. We must determine whether respondents have standing to challenge the regulations in the absence of a live dispute over a concrete application of those regulations." The case involves the "Burnt Ridge Project" for which the Service issued a decision memo approving the Project, a salvage sale of timber on 238 acres damaged by that fire in September 2003.

The Ninth Circuit held that Earth Island’s challenges to regulations not at issue in the Burnt Ridge Project were not ripe for adjudication because there was "not a sufficient ‘case or controversy’" before the court to sustain a facial challenge. It affirmed, however, the District Court’s determination that §§215.4(a) and 215.12(f), which were applicable to the Burnt Ridge Project, were contrary to law, and upheld the nationwide injunction against their application. The majority said, "Here, respondents can demonstrate standing only if application of the regulations by the Government will affect them in the manner described. . . It is common ground that the respondent organizations can assert the standing of their members. To establish the concrete and particularized injury that standing requires, respondents point to their members’ recreational interests in the National Forests. While generalized harm to the forest or the environment will not alone support standing, if that harm in fact affects the recreational or even the mere esthetic interests of the plaintiff, that will suffice. Sierra Club v. Morton, 405 U. S. 727, 734–736 (1972).

The majority determined that the one proof of valid standing in the case was, in fact settled and remedied, in the district court decision, and said, "Respondents have identified no other application of the invalidated regulations that threatens imminent and concrete harm to the interests of their members." The majority further said, "Respondents argue that they have standing to bring their challenge because they have suffered procedural injury, namely that they have been denied the ability to file comments on some Forest Service actions and will continue to be so denied. But deprivation of a procedural right without some concrete interest that is affected by the deprivation -- a procedural right in vacuo -- [in isolation and without reference to anything else] is insufficient to create Article III standing."

The majority concluded, "Since we have resolved this case on the ground of stand-ing, we need not reach the Government’s contention that plaintiffs have not demonstrated that the regulations are ripe for review under the Administrative Procedure Act.We likewise do not reach the question whether, if respondents prevailed, a nationwide injunction would be appropriate. And we do not disturb the dismissal of respondents’ challenge to the remaining regulations, which has not been appealed. The judgment of the Court of Appeals is reversed in part and affirmed in part."

The majority also summarized and responded the dissenting argument as follows: "The dissent proposes a hitherto unheard of test for organizational standing: whether, accepting the organization’s self-description of the activities of its members, there is a statistical probability that some of those members are threatened with concrete injury. Since, for example, the Sierra Club asserts in its pleadings that it has more than "‘700,000 members nationwide, including thousands of members in California’" who "‘use and enjoy the Sequoia National Forest,’" post, . . . it is probable (according to the dissent) that some (unidentified) members have planned to visit some (unidentified) small parcels affected by the Forest Service’s procedures and will suffer (unidentified) concrete harm as a result. This novel approach to the law of organizational standing would make a mockery of our prior cases, which have required plaintiff-organizations to make specific allegations establishing that at least one identified member had suffered or would suffer harm.

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